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Halsbury's Laws of Malaysia - Family Law/390 - Family Law/(6) Marriage/(3) Dissolution of Marriage/ D.
Procedure in relation to Institution, Defence and Trial of Matrimonial Causes/ (iv) Subsequent Procedure/ (A)
Service

(iv) Subsequent Procedure

(A) Service

[390.289]

Service of petition

In general, a copy of every divorce petition must be served personally or by post on every respondent
or co-respondent1.

Service of a petition is to be effected by the petitioner where the party to be served is a person under
disability2 through the petitioner3; and in any other case, through the court or, if the petitioner
requested, through the petitioner4.

Personal service must in no case be effected by the petitioner himself5. For these purposes, a copy of a
petition is deemed to be duly served if an acknowledgement of service in the prescribed form6 is signed
by the party to be served or by a solicitor on his behalf and is returned to the court office7, and, where
the form purports to be signed by a respondent spouse, if his signature is proved at the hearing8.

Where a copy of a petition has been sent to a party and no acknowledgement of service has been
returned to the court office, the Registrar9, if satisfied by affidavit or otherwise that the party has
nevertheless received the document, may direct that the document is to be deemed to have been duly
served10. Where a copy of a petition has been served on a party personally and no acknowledgement
of service has been returned to the court office, service is proved by filing an affidavit of service
showing, in the case of a respondent, the server's means of knowledge of the identity of the party
served11. Where an acknowledgement of service is returned to the court office, the Registrar must send
a copy of it to the petitioner12.

Where in the opinion of the Registrar it is impracticable to serve a party in accordance with any of the
foregoing provisions or with the provisions relating to substituted service13 or it is otherwise necessary
or expedient to dispense with service of a copy of a petition on the respondent or any other person, the
Registrar may make an order dispensing with such service14. If no notice of intention to defend has
been given, an application for such an order must be made ex parte by lodging an affidavit setting out
the grounds of the application15.

1 Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980) r 12(1). This is subject to the provisions of r 12 as
to substituted service and dispensing with service; and also subject to rr 84 and 87 (see [390.284] and [390.291]
respectively). There is no requirement as to the class of postage required. As to service by post see [390.292].

2 Ie disability as within the meaning in the Divorce and Matrimonial Proceedings Rules 1980 r 83: see [390.282].

3 Divorce and Matrimonial Proceedings Rules 1980 r 12(2)(a). See Milne v Milne (1865) 4 Sw & Tr 183 (acceptance of
service on another's behalf: not good service); De Niceville v De Niceville (1868) 37 LJP & M 43 (bad service not cured
by appearance and pleading). When serving the petition, the server should not interrogate to obtain a confession of
adultery: Hallam v Hallam (1903) 20 TLR 34. This, however, does not exclude evidence being given by the process
server as to any relevant matters he may hear or an inquiry as to the name and identity of a woman cited as a woman
unknown.

4 Divorce and Matrimonial Proceedings Rules 1980 r 12(2)(b). When serving the petition, the server should not
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interrogate to obtain a confession of adultery: Hallam v Hallam (1903) 20 TLR 34. This, however, does not exclude
evidence being given by the process server as to any relevant matters he may hear or an inquiry as to the name and
identity of a woman cited as a woman unknown.

5 Divorce and Matrimonial Proceedings Rules 1980 r 12(3).

6 Ie the Divorce and Matrimonial Proceedings Rules 1980 Schedule Form 6.

7 Divorce and Matrimonial Proceedings Rules 1980 r 12(5)(a).

8 Divorce and Matrimonial Proceedings Rules 1980 r 12(5)(b). Cf Gilbert v Gilbert and Brooks [1948] P 314, [1948] 2 All
ER 64 CA (Eng) .

9 For the meaning of 'Registrar' see [390.268] note 3.

10 Divorce and Matrimonial Proceedings Rules 1980 r 12(6). See Heath v Heath [1959] P 193, [1950] 1 All ER 877, CA
(Eng) (leave given to proceed without further service as the petition sent by registered post, but not acknowledged, had
probably been received by the respondent).

11 Divorce and Matrimonial Proceedings Rules 1980 r 12(7). See also Alton v Alton (1920) 64 Sol Jo 308 (respondent's
signature as proof of service); Smith v Smith and Armstrong (1919) 64 Sol Jo 226; Spendley v Spendley and Goard
Hobbs v Hobbs, [1920] P 40; Carter v Carter (1919) 36 TLR 121 (no evidence of identity of respondent; court allowed
evidence of identity to be given). Identification by use of photographs is permissible if they are recent and clear: Dawson
v Dawson and Reilly (1907) 23 TLR 716; Hills v Hills and Easton (1915) 31 TLR 541. The affidavit should identify the
person who was served.

12 Divorce and Matrimonial Proceedings Rules 1980 r 12(8).

13 As to substituted service see [390.290].

14 Divorce and Matrimonial Proceedings Rules 1980 r 12(10). See Ching Kim Foo v Yeh Yi-Ling [2018] 8 MLJ 152;
Weighman v Weighman [1947] 2 All ER 852, CA (Eng) ; Paolantonio v Paolantonio [1950] 2 All ER 404, CA (Eng) ;
Spalenkova v Spalenkova [1954] P 141, [1953] 2 All ER 880; N v N [1957] P 385, [1957] 1 All ER 536; Whitehead v
Whitehead (otherwise Vasbor) [1963] P 117 at 138-139, [1962] 3 All ER 800 at 811-812, CA (Eng) .

15 Divorce and Matrimonial Proceedings Rules 1980 r 12(10).

[390.290]

Substituted service

In cases where service in the prescribed mode1 cannot be effected2, leave may be sought to substitute
some other mode of service, or to substitute notice of the proceedings by advertisement or otherwise3.
An application for such leave must be made ex parte by lodging an affidavit setting out the grounds on
which the application is made4; and the form of any advertisement must be settled by the Registrar5.
Where the court has authorised notice by advertisement to be substituted for service, and the
advertisement has been inserted by some person other than the registrar, that person must file copies
of the newspapers containing the advertisement6.

1 Ie as the mode prescribed in Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980) r 12(1): see
[390.289].

2 See Rowbotham v Rowbotham (1858) 1 Sw & Tr 73 (practical impossibility of personal service); Lacey v Lacey (1858)
28 LJP & M 24 (proof of inquiries at last residence).

3 See Chandler v Chandler (1858) 27 LJP & M 35; Chandler v Chandler (1858) 28 LJP & M 6 (service ordered on
respondent's brother); Peckover v Peckover and Jolly (1858) 1 Sw & Tr 219 (advertisements); Nuttall v Nuttall (1862) 31
LJPM & A 164 (leaving at last address and solicitor's office); Appleyard v Appleyard and Smith (1875) LR 3 P & D 257
(on stepmother, and by advertisement); Trubner v Trubner and Cristiani (1889) 15 PD 24; Stumpel v Stumpel and Zepfel
(1900) 70 LJP 6; Wray v Wray and D'Almeida [1901] P 132 (by registered letter abroad); Turner v Turner [1916] P 324
(registered letter to respondent serving in one of HM ships). Cf Cox v Cox (1889) 61 LT 698 (where the court had to be
satisfied that the document had been received in Mexico). As to advertising see Elsley v Elsley, Beacham and Bagshaw
(1863) 32 LJPM & A 145. In England this applies even where the necessity for substituted service is caused by the delay
of the petitioner: see Jenson v Jenson (1898) 78 LT 764.
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4 Full disclosure of the circumstances must be made on such an application: Wiseman v Wiseman [1953] P 79, [1953] 1
All ER 601, CA (Eng) (decree absolute set aside).

5 Divorce and Matrimonial Proceedings Rules 1980 r 12(9). For the meaning of 'Registrar' see [390.268] note 3.

6 Divorce and Matrimonial Proceedings Rules 1980 r 90(3).

[390.291]

Service out of Malaysia

Any document in matrimonial proceedings may be served out of Malaysia where the proceedings are
pending in the High Court (service of a writ abroad)1 or where the proceedings are pending in a
Sessions Court in Peninsular Malaysia2 or a First Class Magistrate's Court in East Sabah and Sarawak
(service of process abroad)3, in accordance with the Rules of Court 20124 .

Where a petition is to be served on a person out of Malaysia, then, the time limited for giving notice of
intention to defend must be determined having regard to the practice adopted under the relevant Rules
of Court 20125 requiring an order for leave to serve a writ out of the jurisdiction to limit the time for
appearance and the prescribed notice6 must be amended accordingly7.

If the application is to be served otherwise than in accordance with the relevant provisions8, and there
is reasonable ground for believing that the person to be served does not understand English, the
application must be accompanied by a translation, approved by the Registrar9, of the notice in the
prescribed form10 in the official language of the country in which service is to be effected or, if there is
more than one official language of that country, in any one of these languages which is appropriate to
the place where service is to be effected11. Where a document specifying the date of hearing of any
proceedings is to be served out of Malaysia, the date must be fixed having regard to the time which
would be limited as above12 for giving notice of intention to defend as if the document were an
application13.

1 Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980) r 87(1)(a).

2 As to how 'West Malaysia' should be construed see [390.004] note 1.

3 Divorce and Matrimonial Proceedings Rules 1980 r 87(1)(b).

4 See the Rules of Court 2012 (PU (A) 205/2012) O 11 rr 5, 6.As to how the repealed Rules of the High Court 1980 (PU
(A) 50/1980) and the Subordinate Courts Rules 1980 (PU (A) 328/1980) should be construed see [390.266] note
2.Where the document is served in accordance with the repealed Rules of the High Court 1980 these rules will have
effect in relation to service of the document as they have effect in relation to service of notice of a writ and where the
document is served in accordance with the repealed Subordinate Courts Rules 1980 these rules will be effective but the
document need not be served personally on the person required to be served so long as it is served in accordance with
the law of the country in which service is effected. See also the Divorce and Matrimonial Proceedings Rules 1980 r 87(2),
(3). See Ching Kim Foo v Yeh Yi-Ling [2018] 8 MLJ 152.

5 See RC O 11 r 4(3).

6 Ie in the Divorce and Matrimonial Proceedings Rules 1980 Schedule Form 5.

7 Divorce and Matrimonial Proceedings Rules 1980 r 87(4)(a).

8 See note 4 above.

9 For the meaning of 'Registrar' see [390.268] note 3.

10 See note 6 above.

11 Divorce and Matrimonial Proceedings Rules 1980 r 87(4)(b). However, this provision does not apply in relation to a
document which is to be served in a country in which the official language, or one of the official languages, is English: r
87(4)(b) proviso.
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12 See text to note 7 above.

13 Divorce and Matrimonial Proceedings Rules 1980 r 87(5).

[390.292]

Service by post

Where a document is required by the Divorce and Matrimonial Proceedings Rules 19801 to be sent to
any person, it must, unless otherwise directed, be sent by post, if a solicitor is acting for him, to the
solicitor's address2, or if he is acting in person to the address for service given by him or, if he has not
given an address for service, his last known address, but if in the opinion of the registrar the document
would be unlikely to reach him if sent to that address, the Registrar3 may dispense with sending the
document to him4.

1 Ie the Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980).

2 Divorce and Matrimonial Proceedings Rules 1980 r 88(a).

3 For the meaning of 'Registrar' see [390.268] note 3.

4 Divorce and Matrimonial Proceedings Rules 1980 r 88(b).

[390.293]

Proof of service

Where a petition is sent to any person by an officer of the court, he must indorse on a copy of the
prescribed form1 the date of posting and the address written on the letter and must sign the
indorsement and add the name of the court or registry to which he is attached2. An indorsement made
pursuant to the abovementioned must be evidence of the facts stated therein3.

1 Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980) Schedule Form 5.

2 Divorce and Matrimonial Proceedings Rules 1980 r 90(1).

3 Divorce and Matrimonial Proceedings Rules 1980 r 90(2).

[390.294]

Service of other documents and service where no special mode of service prescribed

In no case may personal service be effected by a petitioner on the respondent or by the respondent on
the petitioner1. Unless otherwise directed, service of any document in matrimonial proceedings2 must, if
no other mode of service is prescribed or ordered, be effected if a solicitor is acting for the person to be
served, by leaving the document at, or sending it by post to the solicitor's address3.

If the person to be served is acting in person, service is effected by delivering the document to him or
by leaving it at, or sending it by post to, the address for service given by him or, if he has not given an
address for service, his last known address4, but in this case where it appears to the registrar that it is
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impracticable to deliver the document to the person to be served and that, if the document were left at,
or sent by post to, the address specified it would be unlikely to reach him, the registrar may dispense
with service of the document5.

1 See [390.289].

2 For the meaning of 'matrimonial proceedings' see [390.266] note 3.

3 Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980) r 89(a).

4 Divorce and Matrimonial Proceedings Rules 1980 r 89(b).

5 Divorce and Matrimonial Proceedings Rules 1980 r 89 proviso.

[390.295]

Mode of making applications

Unless otherwise provided, every application in matrimonial proceedings1 must be made to a Registrar2
and if the proceedings are pending in the High Court, must be made by summons or, if the proceedings
are pending in a Sessions Court in Peninsular Malaysia3 or a First Class Magistrate's Court in Sabah
and Sarawak, the application must be made in accordance with the Rules of Court 20124.

1 For the meaning of 'matrimonial proceedings' see [390.266] note 3.

2 Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980) r 91(1)(a). For the meaning of 'Registrar' see
[390.268] note 3.

3 As to how 'West Malaysia' should be construed see [390.004] note 1.

4 See the Rules of Court 2012 (PU (A) 2015/2012) O 7 r 1; and the Divorce and Matrimonial Proceedings Rules 1980 r
91(1)(b).See Chitra a/p Danapalan v Augustine Charles a/l Retnasingam [2012] 9 MLJ 170, where it was held that
application for ancillary relief should have been made under the Divorce and Matrimonial Proceedings Rules 1980 r
56(1), (2) and (3) and not by summons in accordance with this rule as the decree nisi was a final order.

[390.296]

Appeal from Registrar in subordinate court proceedings

An appeal on an order or decision given must be made in accordance with the Rules of Court 20121.

1 See the Rules of Court 2012 (PU (A) 205/2012) O 55; and Divorce and Matrimonial Proceedings Rules 1980 (PU (A)
32/1980) r 92.As to how the repealed Rules of the High Court 1980 (PU (A) 50/1980) and the Subordinate Courts Rules
1980 (PU (A) 328/1980) should be construed see [390.266] note 2.

[390.297]

No notice of intention to proceed after year's delay

The relevant provisions of the Rules of Court 20121 which require a party to give notice of intention to
proceed after a year's delay do not apply to any matrimonial proceedings2 pending in the High Court3.
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1 See the Rules of Court 2012 (PU (A) 205/2012) O 3 r 6.

2 For the meaning of 'matrimonial proceedings' see [390.266] note 3.

3 Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980) r 93.

[390.298]

Mode of giving notice

Unless otherwise directed, any notice which is required to be given to any person under the Divorce
and Matrimonial Proceedings Rules 19801 must be in writing and, if it is to be given by the Registrar2
must be given by post3.

1 Ie the Divorce and Matrimonial Proceedings Rules 1980 (PU (A) 32/1980).

2 For the meaning of 'Registrar' see [390.268] note 3.

3 Divorce and Matrimonial Proceedings Rules 1980 r 94.